When Should You File A Wrongful Death Lawsuit?

When Should You File A Wrongful Death Lawsuit?

Death is part of life. However, not every death is natural or expected. A death can occur as the result of another person’s accidental or intentional action. That action can happen on the highway, in a hospital, or in a club venue. In Mississippi, the deceased person’s family or their heirs might be able to file a wrongful death lawsuit. Proving that a death is the result of someone else’s action or negligent failure to act can be a challenge. Addressing that challenge often begins with examining the merits of the case. The experienced wrongful death attorneys at Lott Law may provide vital information about this type of lawsuit. Call (228) 215-2787 to schedule your consultation today. 

What Is a Wrongful Death Lawsuit?

In legal terms, a wrongful death is when a person (referred to as a decedent) dies due to the alleged fault of another party. That legal fault can fall under one of the following categories: 

  • A negligence-based incident such as a car, truck, bus, or train accident.
  • A medical malpractice incident such as a surgical error or misdiagnosis
  • A defective product such as an appliance, machine, food, beverage, or medication
  • An intentional act such as a death that results from the commission of a crime.

Wrongful Death vs. Personal Injury

Another way to look at a wrongful death lawsuit is that it generally alleges the same kinds of legal fault for which the individual harmed might have filed a personal injury lawsuit if they had lived. In both types of lawsuits, the goal is to find the defendant liable for the death. Similar to the way personal injury claims work, a defendant who loses a wrongful death case will be responsible for paying some level of financial compensation or damages. In a wrongful death lawsuit, that compensation will be paid to the deceased person’s surviving family members. 

Wrongful Death vs. Criminal Charges

Families should understand that a wrongful death lawsuit is not the same as a criminal case. A conviction can lead to prison time and other sanctions in a criminal case. A wrongful death lawsuit, if won, will result in a financial recovery, but no prison time.

However, a wrongful death lawsuit can be filed for the same “crime,” even if the defendant in the criminal case was found not guilty. This is because the other difference between a civil and criminal prosecution is the standard of guilt. In a criminal case, the accused must be found guilty “beyond a reasonable doubt.” For a wrongful death lawsuit, the accused would only need to be found guilty “by a preponderance of evidence.” Under a preponderance of evidence standard, the defendant can be held liable for damages if the evidence shows they are more likely than not to have been responsible for the death. 

Filing a Wrongful Death Lawsuit in Mississippi

There are specific rules for who can file a wrongful death lawsuit. According to Miss. Code Ann. § 11-7-13, the following people are permitted to file that kind of lawsuit: 

  • The executor of the decedent’s estate
  • The surviving spouse
  • The surviving parents or children (half-brothers and half-sisters as well)
  • Any surviving siblings of the decedent

The law further states that only one wrongful death lawsuit can be filed for the death. However, any eligible person can be a party to the single wrongful death lawsuit. Deciding who is eligible to be a party to a wrongful death lawsuit is one of the many questions the Lott Law team may be able to answer.

What Is the Damage Cap for a Wrongful Death Lawsuit?

There are limits to how much the plaintiff can be awarded as damages in a successful wrongful death lawsuit. Those damages can include compensation for the following types of losses: 

  • Any medical expenses related to the deceased’s injury 
  • Funeral expenses
  • Payments for damaged property
  • Pain and suffering 
  • Survivors’ loss of the deceased’s “society and companionship”
  • The value of potential lost wages and benefits the deceased could have earned if they were alive.

Like many other states, Mississippi limits the amount of damages that can be awarded in a wrongful death lawsuit. According to state law, the cap on noneconomic damages, which include such items as pain and suffering and loss of companionship, is $1,000,000 for all civil injury cases not involving medical malpractice. In a wrongful death lawsuit where medical malpractice is alleged to be the cause of death, the cap is $500,000. In addition to those limits imposed on awards of noneconomic damages, the decedents’ survivors can be awarded economic damages such as medical bills, lost wages, or funeral expenses. 

What Is the Burden of Proof for a Wrongful Death Lawsuit?

The burden of proof in a wrongful death lawsuit is on the plaintiff who brings the suit. They and their legal team, if they choose to hire one, have to establish by a preponderance of the evidence that the defendant directly caused the death of their loved one. Meeting that legal standard requires establishing four specific elements. 

Duty of Care

The plaintiff must establish that the defendant owed a “duty of care” to the deceased. The Cambridge Dictionary defines a duty of care as a moral or legal responsibility not to allow someone to be harmed. In a car accident, that duty of care refers to being a responsible driver. In a medical malpractice case, the duty of care refers to the level of professional diagnosis and care given to a patient. In other words, what was overlooked or neglected could have caused the death? 

Breach of Duty 

The plaintiff must establish that the defendant breached their duty of care. The evidence presented by attorneys in a wrongful death will demonstrate negligence, recklessness, or intentional wrongdoing. For instance, in a car accident, it might be proven that the defendant was driving under the influence of alcohol. The plaintiff could argue that knowingly operating a vehicle while impaired constituted a clear breach of the defendant’s duty of care. 


The plaintiff must present evidence that establishes a direct causal link between the defendant’s breach of duty and the wrongful death. That is another way of saying, “Had it not been for the defendant’s actions, the decedent would still be alive today.” 


Finally, the plaintiff must demonstrate the damages suffered as a result of the wrongful death. Proving a wrongful death case requires gathering and presenting compelling evidence to support the claims. The types of evidence that can help meet the burden of proof include the following:

  • Eyewitness testimony
  • Expert witnesses
  • Physical evidence
  • Documentation
  • Reconstructing the incident

The legal team, if there is one, will be responsible for gathering and presenting the appropriate evidence. 

Start the Filing Process the Right Way 

When deciding to pursue a wrongful death lawsuit, factoring in the statute of limitations is essential. Under Miss. Code Ann. § 15-1-49, the deceased surviving family members have three years from the date of the death to file the lawsuit in most cases, although Miss Code Ann. § 15-1-36 provides specific exceptions for medical practice cases. The filing process begins with assessing the merits of the case to determine the best way forward. The experienced legal team at Lott Law is standing by to provide those answers. Call (228) 215-2787 to set up a consultation with one of their wrongful death lawyers today.